Court sides with contractor in dispute over use of flaggers in Auburn

By BRENDAN CLOGSTONUnion Leader Correspondent January 23. 2013 10:59PMAUBURN - A Circuit Court judge has ruled in favor of an Auburn road contractor charged with violating a town traffic-control ordinance that has been a point of contention in the town.

The case hinged on the interpretation of a town ordinance, adopted by the selectmen last August, that allows the town and its road work contractors to use "minimum standards of traffic control" on some roads. This allowed the town and its road agents to use private flaggers instead of a more expensive police detail ($22 an hour compared to $35 an hour).

On Sept. 13, Auburn police issued a court summons to Advanced Excavating and Paving, a company contracted by the town for road work, for using flaggers rather than a police detail for traffic control at a worksite on Rattlesnake Hill Road.

The department, and later the prosecution led by Auburn Sgt. Chip Chabot, had argued that the "statement of purpose" for the ordinance required the town and its agents to follow the regular traffic control demands on Rattlesnake Hill Road, which is a police detail.

Defense attorney Nicholas Brodich argued that the exemption clause only required the town contractor to adopt "minimum standards" of traffic control. Those are defined as "cones, signage, barricades," and as such the use of flaggers actually provided more control than what was required of them.

Brodich had asked the case to be dismissed on these grounds.

Judge David LeFrancois of the 10th Circuit District Division Court in Candia granted the dismissal on Jan. 18.

"We're certainly pleased with the judge's decision," said Town Administrator Bill Herman. "His decision reinforces the determination the Board of Selectmen had made in the process. I think it points to the validity of the ordinance that the board adopted last year."

How the department will treat the ordinance and cases like Advanced Excavating in the future is also not clear at this time.

Chabot noted in December that the police department intended for "the judge to interpret the ordinance," noting that through the case, "we'll find out exactly what the ordinance is and what it is not."